Gonzales Gone Wild

On Feb. 6, 2006, U.S. Attorney General Alberto Gonzales launched a convoluted attack on the Fourth Amendment before the Senate Judiciary Committee. This assault on the meaning of the Fourth Amendment is, in my estimation, the biggest leap forward for totalitarianism in this country.

The following is an excerpt from Alberto Gonzales’ Fourth Amendment catechism (emphasis mine):

Finally, the NSA’s terrorist surveillance program fully complies with the Fourth Amendment, which prohibits unreasonable searches and seizures. The Fourth Amendment has never been understood to require warrants in all circumstances. The Supreme Court has upheld warrantless searches at the border and has allowed warrantless sobriety checkpoints. See, e.g., Michigan v. Dept. of State Police v. Sitz, 496 U.S. 444 (1990); see also Indianapolis v. Edmond, 531 U.S. 32, 44 (00) (stating that ‘the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack’). Those searches do not violate the Fourth Amendment because they involve ‘special needs’ beyond routine law enforcement. Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 653 (1995). To fall within the ‘special needs’ exception to the warrant requirement, the purpose of the search must be distinguishable from ordinary general crime control. See, e.g., Ferguson v. Charleston, 532 U.S. 67 (01); City of Indianapolis v. Edmond, 531 U.S. 32, 41 (00).

The terrorist surveillance program fits within this ‘special needs’ category. This conclusion is by no means novel. During the Clinton Administration, Deputy Attorney General Jamie Gorelick testified before Congress in 1994 that the president has inherent authority under the Constitution to conduct foreign intelligence searches of the private homes of U.S. citizens in the United States without a warrant, and that such warrantless searches are permissible under the Fourth Amendment. See ‘Amending the Foreign Intelligence Surveillance Act: Hearings Before the House Permanent Select Comm. on Intelligence,’ 103d Cong. 2d Sess. 61, 64 (1994) (statement of Deputy Attorney General Jamie S. Gorelick). See also In re Sealed Case, 310 F.3d at 745-46.

The key question under the Fourth Amendment is not whether there was a warrant, but whether the search was reasonable. Determining the reasonableness of a search for Fourth Amendment purposes requires balancing privacy interests with the government’s interests and ensuring that we maintain appropriate safeguards. United States v. Knights, 534 U.S. 112, 118- 19 (01). Although the terrorist surveillance program may implicate substantial privacy interests, the government’s interest in protecting our nation is compelling. Because the need for the program is reevaluated every 45 days and because of the safeguards and oversight, the al-Qaeda intercepts are reasonable.”

The above statement from Alberto Gonzales is breathtaking. Notice how he never says the “terrorist” surveillance program satisfies the Fourth Amendment’s probable cause provision. Instead, he says it passes the neoconservative “reasonableness” standard. Then, he uses three different types of examples that satisfy the probable cause requirement to imply that the Fourth Amendment doesn’t really say what it says about probable cause.

Although I do question the constitutionality of sobriety checkpoints, a sobriety checkpoint on a public road is still different from invading the privacy of one’s house, or eavesdropping on a phone conversation. Sobriety checkpoints are considered constitutional not just because they pass a “reasonableness” standard, but, because they are on public roads, they satisfy the entire Fourth Amendment.

Gonzales then uses the example of FISA searches. It is important to understand that evidence obtained from a FISA search cannot be used in a criminal prosecution, precisely because the FISA standard doesn’t meet the probable cause threshold of the Fourth Amendment. The evidence can only be used for narrow purposes, such as deportation of a foreign intelligence operative. So, yes, FISA searches don’t meet the probable cause threshold, but that is exactly why they can’t be used to obtain evidence for criminal prosecutions. The probable cause threshold is satisfied, since it isn’t violated.

Notice the eclectic examples Gonzales uses. He fuses together “special needs” law enforcement operations with counterintelligence operations. This is a very dangerous comparison. Making counterintelligence operations part of “special needs” law enforcement programs is a calculus to use FISA-type searches for crime control.

Gonzales then repeats his view that the Fourth Amendment doesn’t require probable cause and warrants. The search only has to be “reasonable,” pursuant to the arbitrary discretion of government agents. He then cites United States v. Knights. I have to wonder if he has ever read that decision, since the Supreme Court didn’t rule against Knights because the search only passed the “reasonableness” standard. The search satisfied the probable cause threshold because Knights was on probation! He was subject to warrantless searches as part of his sentence.

Would it be constitutional for the government to execute all of us, since Ted Bundy was constitutionally executed? Or would it be okay for the government to force all of us to submit to urinalysis testing because people on probation have to?

The “reasonableness” standard is a neoconservative invention. None of the examples Gonzales cited give the Bush administration a detour around the probable cause threshold. Not all searches must meet the probable cause threshold, but all searches must satisfy the probable cause threshold. Gonzales doesn’t even pretend that the NSA’s program satisfies the entire Fourth Amendment. Instead, he says searches only need to satisfy a “reasonableness” standard.

To fully appreciate the significance of the Bush administration’s assault on the Fourth Amendment, one should place this in a historical context. For King George III’s deputies to enforce his laws, Parliament passed the Writs of Assistance Act. Writs of assistance were warrants so general that they allowed the king’s agents to go wherever they wanted, whenever they wanted, for whatever reason they wanted. Writs of assistance were basically licenses for the king’s men to oppress the colonists. It was the writs of assistance that spawned the Revolutionary War. The Founding Fathers prevailed in the war against the Crown. The Founders gave us the Bill of Rights, which includes the Fourth Amendment. The Fourth Amendment condemns the concept of general warrants.

Fast-forward 230 years: King George W. Bush is surpassing George III, by attacking the concept of needing any type of warrant. Do we really want federal agents to go wherever they want, whenever they want, for whatever reason they want, with impunity?

The usual refrain I hear from neoconservatives is that we shouldn’t be concerned about what the government is doing unless we are doing something wrong. I say the government shouldn’t be concerned about what we are doing unless we are doing something wrong. If somebody is engaged in criminal activity, why can’t an official say this under oath?

Consider all of the statutes on the books. Are there no statutes that violate our rights? Perhaps some people do have a legitimate need to hide illegal activity – i.e., illegal activity that shouldn’t be illegal. Also, are there no legal activities that should be private? Would you trust your neighbors having the power to invite themselves inside of your house whenever they wished? Why would you trust somebody with that same power just because they work for the government? As Paul Craig Roberts pointedly asks, “Why, if only evildoers have anything to fear from government, the Founding Fathers bothered to write the Constitution?”